Disability Leave

Most people work 40 hours or more each week. Work has become a major part of the average American’s life. Unfortunately, we can’t control when serious illnesses or disabilities will strike, preventing us from successfully completing our work tasks. When this happens, what should an employee do? Under CA law, in many situations the employee can take a disability leave of absence. What does this mean? Read below for more information.

The topics covered on this webpage are related to disability leave law in California:

Taking a disability leave of absence under FMLA or CFRA

Reasonable accommodation leaves of absence

Paid disability leave benefits in California

When Would it be Considered “Undue Hardship” for the Employer?

More Questions? Ask a Disability Leave Attorney

Please note that reading this page and website are not a substitute for consulting with a LA wrongful termination attorney. Every case and situation is different and this page does not give legal advice.

Taking a Disability Leave Under FMLA or CFRA

For the purposes of leave under FMLA and CFRA, disability is defined as a physical or mental impairment that substantially limits a major life activity, as interpreted by the Equal Employment Opportunity Commission (EEOC)[1]. It is different than what qualifies as serious health conditions, which is when the employee or family member is incapacitated for a period of time, usually due to inpatient care of treatment that takes 3 days or more.[2] FMLA/CFRA adopts this definition from the Americans with Disabilities Act (ADA) to define “physical and mental disability”. But the ADA does not list all the specific impairments that are offered; it is a good idea to talk to a disability attorney to see if your or your family member’s disability is covered by FMLA/CFRA.

FMLA/CFRA does not cover every employer or employee. There are specific qualifications that need to be met before either are subject to the rules of the FMLA/CFRA leave laws. To be covered, both employers and employees have to meet the following:

Covered Employers – Private employers that have 50 or more employees working within 75 miles of the employee’s worksite are covered under FMLA. Private employers with fewer than 50 employers can also opt in and be protected; many do find it beneficial to do so. Public agencies, including private and public schools are also protected under FMLA, regardless of how many employees they have.

Covered Individuals – Employees who have worked for the covered employer for at least 12 months and have worked a minimum of 1,250 hours within the last 12 months, prior to taking leave, are covered. In addition, there must be at least 50 employees working within 75 miles of this individual’s worksite in order for this employee to be covered.

FMLA/CFRA allows unpaid disability leave for employees who have a serious health condition or need to care for family members (spouse, son, daughter, or parent) who have a covered disability. Generally, an employee can only take time off to care for a child that is under 18. However, a biological, adopted, foster, stepchild, or legal ward who is 18 or older may qualify an employee to take FMLA leave if The adult child is incapable of self-care due to a physical or mental disability.[3] Employees can take up to 12 weeks total to take care of him/herself or a family member, as long as all requirements are met.

The one major difference between FMLA and CFRA, regarding disability leave, is that pregnancy disability is not covered by CFRA, but is covered by FMLA. CFRA will allow 6 weeks of bonding time with a newborn, but not if the pregnant woman has a pregnancy or childbirth related disability. CA has its own pregnancy disability law that fills the gap.

Disability Leave as a Reasonable Accommodation

A reasonable accommodation is, generally, any change in the work environment or in the way things are customarily done that enables the disabled individual to perform the essential functions of the job and enjoy equal employment opportunities. Reasonable accommodations for disabled persons also include the modification of leave policies, even if the company doesn’t have any in place. The goal of allowing disability leave as a reasonable accommodation is to give employees with disabilities equal opportunities of employment as everyone else. Wilson v. County of Orange

When disability leave is given as a reasonable accommodation, it does not have to follow the customary rules of leave in the company. Reasonable accommodation requires employers to change the way things are traditionally done to enable employees with disabilities to perform the essential functions of the job.

However, the employer doesn’t always need to change their policies to accommodate, as requests for leave related to disabilities often fall under existing policies. The employer has to consider unpaid leave when an employee with disabilities request it, as long as it does not cause undue hardship to the employer. This is a rule applicable to:

Employers who do not offer leave as an employee benefit

Employees who are not eligible for leave under the employer’s policy

And employees who have used up their available leave as provided by the employer

When Would it be Considered “Undue Hardship” for the Employer?

As mentioned previously, an employer is not required to approve a disability leave request when it causes undue hardship to the company. If the accommodation is not reasonable, the employer does not have to provide it. In assessing whether the disabled employee’s request for leave will cause undue hardship, the following things are considered:

The frequency of the employee’s leave

The amount or length of time needed for leave (whether 3 days per week or 6 days intermittent leave per month)

Whether there is flexibility to the days that leave is required (i.e. getting dialysis treatment on Mondays and Thursdays)

The predictability of intermittent leave

The impact of the employee’s absence on his/her co-workers and whether job duties will be fulfilled appropriately and efficiently

Whether the employee’s absence will impact the employer’s operations and its ability to serve customers/clients sufficiently and in a timely manner

If the employer refuses to provide you with a reasonable accommodation and fires you, you can sue the employer for LOA discrimination to recover lost wages and emotional distress damages.

Paid Disability Leave Benefits in California

Taking a leave through FMLA and CFRA tends to be unpaid, as the law does not require employees to pay for this time off. However, through the California State Disability Program, an employee can be eligible for paid disability leave, including pregnancy-related disabilities. The SDI program funds two state-run programs:

Disability Insurance (DI) – when on leave for your own disability or illness, including pregnancy-related

Paid Family Leave (PFL) – when on leave to care for seriously ill family members or to bond with a new child

In this section, we discuss the Disability Insurance (DI) program, not the Paid Family Leave (PFL) program. Eligible employees are those who contribute to the California State Disability Insurance (SDI) fund and have the following reasons for leave:

To care for a seriously ill parent, child, spouse, or registered partner

To care for themselves (disability-related care)

Eligible, disabled California workers who can benefit from this program are those who are not able to work because of a non-work-related illness, injury, or pregnancy. The disability, whether mental or physical, must be preventing the employee from performing their regular and customary work, including: elective surgery, pregnancy, childbirth, and other related-medical conditions. To receive the paid disability benefits, you need to:

File a claim for disability insurance through SDI Online or a paper claim form

Go through a 7-day, non-paid waiting period

Have at least $300 in wages that were subject to SDI contributions in the last 12 months

Have your disability certified by your physician or practitioner by completing

Through the DI program, eligible employees with disabilities are allowed up to 52 weeks of pay. The maximum benefit allowed is $1,129 per week and a minimum or $50 per week. To qualify for the max amount, you must have earned at least $26,070.92 in a calendar quarter during your base period. For more information in calculating disability benefit payment amounts at this CA EDD page.

More Questions? Ask an Attorney

Disability leave can be wrongfully denied by the employer, even if it is clearly laid out in the employee handbook. It’s important that you work with a knowledgeable and experienced disability leave of absence attorney who can help you fight your case. If you believe that you’ve been wrongfully denied disability leave or that your employer is not reasonably accommodating your disability, contact us to speak with a disability lawyer immediately for a free consultation.

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